Urbina, Ricardo - Interview master file
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- | Ready? | 0:05 |
- | Yeah, we're rolling. | |
- | Okay, good morning. | 0:06 |
(Ricardo clears throat) | ||
- | Good morning. | 0:07 |
Interviewer | We are very grateful to you | 0:08 |
for participating in the | 0:09 | |
Witness to Guantanamo project. | 0:11 | |
We invite you to speak of your experiences | 0:13 | |
and involvement with, | 0:17 | |
and the work you did at the court | 0:19 | |
and Guantanamo Bay, Cuba. | 0:21 | |
We are hoping to provide you with an opportunity | 0:23 | |
to tell your story in your own words, | 0:25 | |
and we're creating an archive of stories | 0:29 | |
so that people in America and around the world | 0:31 | |
will have a better opportunity to understand | 0:34 | |
all that happened in the past dozen years. | 0:37 | |
And hopefully, your experience will help us understand that. | 0:40 | |
Future generations must know what happened at Guantanamo, | 0:44 | |
and by telling you a story, | 0:47 | |
you're contributing to history. | 0:49 | |
We appreciate your willingness to speak with us today. | 0:51 | |
And if you'd like to take a break, | 0:54 | |
please let us know. | 0:56 | |
- | Aye. | |
Interviewer | And if there's anything you said | 0:57 |
you would like to remove, | 0:59 | |
we can remove it too, | 1:00 | |
if you let us know in time. | 1:01 | |
- | Very well. | 1:02 |
Interviewer | And we'd like to begin with | 1:03 |
a little background. | 1:04 | |
If you wouldn't mind telling us your name, and occupation, | 1:05 | |
and also, a little bit about your upbringing, | 1:08 | |
and how old you are? | 1:11 | |
- | Okay. | 1:13 |
My name is Ricardo Urbina. | 1:14 | |
I was born in 1946, January, | 1:17 | |
and I was born of a Honduran father | 1:20 | |
and a Puerto Rican mother. | 1:23 | |
So they came here. | 1:24 | |
They met, grow up in New York City, Manhattan, | 1:25 | |
and then in Queens. | 1:29 | |
When I was 17, | 1:30 | |
I started college in Washington DC, | 1:31 | |
and after four years of college, | 1:36 | |
I decided to go to law school, | 1:39 | |
and I went to Georgetown Law. | 1:41 | |
I was a part federal... | 1:44 | |
I was a public defender for a number of years. | 1:45 | |
That was an agency that represented individuals | 1:48 | |
who were accused of crimes but couldn't afford counsel. | 1:51 | |
And after a few years of that, | 1:55 | |
I went into private practice with a friend. | 1:58 | |
And about two years into that experience, | 2:01 | |
I was recruited by Howard University to teach. | 2:04 | |
I joined the faculty there. | 2:07 | |
And after about seven, | 2:10 | |
a little more than seven and a half years, | 2:12 | |
I was nominated for a position | 2:15 | |
on the Superior Court of the District of Columbia. | 2:18 | |
Even though it's not a federal court, | 2:22 | |
the president makes appointments, | 2:24 | |
and I was President Reagan's first appointment. | 2:26 | |
After 13 years on the bench there, | 2:29 | |
I was invited to join the federal bench | 2:31 | |
by President Clinton in 1993. | 2:36 | |
And I spent 18 years on the federal bench, | 2:40 | |
and retired a couple years ago. | 2:43 | |
Interviewer | Can you just tell us | 2:47 |
where you went to college too? | 2:48 | |
'Cause you just mentioned- | 2:49 | |
- | Yes. | |
I went to Georgetown University and then Georgetown Law. | 2:50 | |
Interviewer | And is there anything... | 2:55 |
Is there anything about the past, up till 9/11, | 2:58 | |
that you think maybe you just wanna give us | 3:01 | |
that informs how you became a judge? | 3:04 | |
Did you know the presidents, | 3:07 | |
or did you have connections? | 3:10 | |
- | No, I didn't have any connections to speak of. | 3:11 |
interestingly enough, | 3:14 | |
people who are interested in becoming judges | 3:15 | |
have to have a quality which is totally opposite | 3:18 | |
to what they ultimately have to do to become a judge. | 3:21 | |
You have to be apolitical, and you should be at least. | 3:26 | |
But of course, in order to get the best advantage, | 3:29 | |
in order to be considered, | 3:33 | |
you have to speak to the right people | 3:34 | |
and meet the right people. | 3:36 | |
I was very fortunate, in that the Superior, | 3:38 | |
in the District of Columbia, | 3:40 | |
there had never been a Latino judge | 3:41 | |
appointed to any bench at any time. | 3:44 | |
And so the Latino community, | 3:46 | |
the African-American community, the Women's Bar, | 3:48 | |
all kind of consolidated their efforts | 3:51 | |
to bring to the president's attention that gap. | 3:55 | |
And so I was appointed. | 3:58 | |
Interviewer | And how did they know you? | 4:00 |
- | Well, I was well known as a trial attorney, | 4:02 |
but also, I taught. | 4:06 | |
I had some visibility there. | 4:08 | |
And I continued to practice in the courts. | 4:09 | |
Even while I was teaching, | 4:12 | |
I had a private practice that took me to the courts. | 4:13 | |
I would try, perhaps, one murder case | 4:16 | |
or one complex civil case a year. | 4:18 | |
And so I had good visibility, | 4:21 | |
and, I'd like to believe, a good reputation | 4:22 | |
among the judges in the Superior Court. | 4:26 | |
But the people, | 4:28 | |
they were people up on the Hill, | 4:29 | |
Senator Javits being one of them, | 4:30 | |
who became interested in me, | 4:32 | |
and so that prompted some of the political momentum. | 4:34 | |
Interviewer | Did it appeal to you to become a judge, | 4:39 |
as opposed to a professor or a lawyer? | 4:41 | |
- | Well, to tell you the truth, | 4:43 |
I had not thought about it at all. | 4:45 | |
One day, the dean of the law school | 4:46 | |
called me into his office, | 4:49 | |
and I thought I was in trouble, but I wasn't, | 4:51 | |
and he said, | 4:55 | |
"Have you ever thought about being on the bench?" | 4:56 | |
And I told him no. | 4:58 | |
You know, I was 33 or 34 at the time. | 5:00 | |
And he said, "Here, well fill this out | 5:03 | |
and give it back to me tomorrow", and I did. | 5:04 | |
And he looked at it, and he said, | 5:06 | |
"Well, you know, you are young, but let's see." | 5:08 | |
So next thing you know, | 5:11 | |
the Judicial Nominations Commission | 5:13 | |
invited me in for an interview, | 5:14 | |
and things began to move in the right direction. | 5:17 | |
It didn't hurt that the dean was the chair | 5:19 | |
of the Judicial Nominations Commission, so. | 5:21 | |
(both laughing) | 5:23 | |
Interviewer | So he had his eye on you? | 5:24 |
- | Yes, he did. | 5:25 |
Interviewer | And did you look forward | 5:26 |
to becoming a federal judge? | 5:28 | |
Is that- | 5:30 | |
- | Yes. | |
I did. | 5:32 | |
For a couple of reasons. | 5:34 | |
Of course, being a federal judges is a wonderful position, | 5:35 | |
in that you get an opportunity to actually influence | 5:39 | |
the way your country conducts itself vis-à-vis the law, | 5:42 | |
and I felt that there were areas that it would help | 5:47 | |
to have someone with my background and my experience. | 5:52 | |
So that was a motivation. | 5:55 | |
I was also motivated by the fact that the... | 5:58 | |
While I was on the Superior Court, | 6:04 | |
it was a people's court. | 6:06 | |
Lots of cases. | 6:08 | |
I sat in all the divisions of domestic relations, | 6:09 | |
and juvenile, and civil, and criminal. | 6:13 | |
For two years, I sat on a calendar. | 6:16 | |
I presided over cases that consisted only of rape, | 6:18 | |
first degree murder, and child molestation cases. | 6:21 | |
And so after 13 years of that, | 6:25 | |
you get a little tired, | 6:27 | |
and you want, not so much of the subject matter, | 6:28 | |
but you get a little psychically tired, | 6:31 | |
and I decided that I would like an opportunity | 6:34 | |
to be able to actually think about things | 6:37 | |
before deciding them. | 6:39 | |
So federal bench had that appeal as well | 6:42 | |
Interviewer | So you started... | 6:47 |
I'm sorry, what year did you begin on the federal bench? | 6:48 | |
- | 1990, 1994. | 6:51 |
Interviewer | And so when 9/11 happened, | 6:56 |
did that change immediately | 6:58 | |
how you saw your role on the federal bench? | 7:01 | |
- | No. | 7:04 |
Coincidentally, I was presiding over | 7:06 | |
a naturalization ceremony on the day of 9/11. | 7:09 | |
It was an audience of about 2 or 300 people, | 7:13 | |
most of them just being, | 7:17 | |
just becoming citizens that day. | 7:20 | |
It's a wonderful thing that judges get to enjoy. | 7:23 | |
Nobody walks away unhappy, | 7:26 | |
unlike other cases. | 7:27 | |
I was told just before I went on the bench, | 7:30 | |
that these airplanes had flown | 7:31 | |
into the buildings. | 7:37 | |
But I did not share that information with the audience. | 7:40 | |
I went through the 45 minute ceremony, | 7:42 | |
and spoke, and so forth. | 7:46 | |
And then at the end of the ceremony, | 7:48 | |
after everyone had been sworn in, | 7:50 | |
I told them that it was a great responsibility | 7:52 | |
to be an American, | 7:56 | |
and that it was a great honor to be an American, | 7:57 | |
and it was also very dangerous to be an American, | 8:00 | |
and then I told them what I meant. | 8:03 | |
And literally, everyone that I looked at was crying. | 8:05 | |
They were that emotionally moved. | 8:10 | |
I left that ceremony, | 8:15 | |
and went up to to my courtroom | 8:16 | |
where I had eight representatives | 8:19 | |
of the Japanese government waiting for me, | 8:22 | |
sitting in the jury box, | 8:24 | |
who were waiting to ask questions about | 8:25 | |
visiting the court, and so forth. | 8:28 | |
But no, I knew that things were going to change, | 8:29 | |
but I did not have a vision. | 8:33 | |
I didn't have a hint of how much they were gonna change. | 8:35 | |
Interviewer | So you didn't see | 8:39 |
the planes actually flying? | 8:40 | |
You were just | 8:41 | |
informed of that- | 8:42 | |
- | Yeah. | |
I saw the films later on, but no, I hadn't. | 8:43 | |
I didn't actually appreciate it, | 8:45 | |
how incredibly horrific the scene was. | 8:47 | |
Interviewer | And did you have any cases | 8:51 |
dealing with 9/11 issues at all before? | 8:54 | |
- | No. | 8:58 |
- | Nothing? | |
- | No, none of those cases came to my court, | 8:59 |
or even to my court, the general court, | 9:03 | |
the US District Court. | 9:06 | |
Although, we were put on alert | 9:08 | |
that there was gonna be | 9:09 | |
a very active campaign to identify and prosecute terrorists. | 9:11 | |
None of those cases came to me, | 9:17 | |
or, I believe, none came to my court. | 9:19 | |
Interviewer | How does it happen | 9:22 |
that a case will go to | 9:23 | |
one district judge in DC and not another? | 9:24 | |
Is that assigned by the- | 9:27 | |
- | No. | |
Well, yes and no. | 9:30 | |
No, all the judges are on a wheel, | 9:31 | |
and as cases come in, | 9:34 | |
your position on the wheel is pretty much serendipitous | 9:37 | |
one way or the other, | 9:42 | |
and then the case goes to you. | 9:43 | |
In this situation we're about to talk about, however, | 9:47 | |
when these cases came in, there had never, | 9:51 | |
there was no precedent for how to deal with these cases. | 9:53 | |
We, meaning my court, got all of the Guantanamo cases, | 9:56 | |
all of them, | 9:59 | |
because of the statute that dictated that | 10:00 | |
those cases would come to us, | 10:02 | |
as you know as a law professor. | 10:03 | |
So the Chief Judge, Tom Hogan, | 10:06 | |
did an amazingly good job of kind of organizing | 10:10 | |
and orchestrating how we would proceed, | 10:14 | |
how to get things moving | 10:16 | |
so that we were all on the same page, so to speak. | 10:18 | |
And at one point, when the issue came up | 10:22 | |
of how to deal with a grouping of cases, | 10:26 | |
he would assign them. | 10:29 | |
And he did assign me the cases regarding the Uyghurs. | 10:30 | |
Interviewer | Well, let's back up then. | 10:34 |
So until 2004, the rest of the decision, | 10:36 | |
I assume your court didn't expect to get any habeas cases, | 10:40 | |
or did you? | 10:44 | |
Were you- | 10:44 | |
- | Well, I can't speak for the individual judges. | 10:45 |
Some of the judges, I think might've felt | 10:48 | |
that the cases were gonna come our way. | 10:50 | |
But other judges understood, | 10:52 | |
after what Russell, | 10:58 | |
and Hamdan, later on, two years later, | 10:59 | |
that there was a real effort | 11:02 | |
on the part of the federal government, | 11:04 | |
the executive and the legislative, | 11:05 | |
to keep these cases out of the court system, | 11:07 | |
and to create a venue | 11:09 | |
where these cases could be expeditiously addressed. | 11:12 | |
And so it was unclear | 11:15 | |
as to exactly what we were gonna get. | 11:18 | |
But when they did all come our way, | 11:20 | |
I think we were mainly caught by surprise. | 11:22 | |
Male | Peter, can we pause for just 30 seconds? | 11:25 |
Peter | Sure. | 11:26 |
Interviewer | So until 2008, until the Boumedine | 11:28 |
the court didn't expect to see habeas cases, | 11:32 | |
or where they begin to think of it after Hamdan? | 11:35 | |
Essentially, to just know what the court | 11:38 | |
is thinking up till the Boumedine. | 11:40 | |
- | Well, I think the judges were watching the action, | 11:42 |
so to speak, | 11:47 | |
how the legislative branch was | 11:48 | |
really toiling with the issue | 11:51 | |
of how to deal with this population of detainees. | 11:53 | |
Of course, there was the efforts | 11:59 | |
on the part of Congress to create tribunals, | 12:01 | |
and military courts, | 12:06 | |
some of which had potential, | 12:08 | |
but as you know from the decisions, | 12:11 | |
they were largely rejected by the courts later on, | 12:13 | |
because they did not have the due process | 12:17 | |
pursuant to the Fifth Amendment, or otherwise, | 12:20 | |
that would have afforded them | 12:23 | |
a fair opportunity to be heard. | 12:24 | |
So I think we were all watching. | 12:27 | |
Maybe there was some chatter about, | 12:29 | |
well, who was gonna win this tug of war? | 12:30 | |
Was it gonna be the legislative branch? | 12:32 | |
And then the executive branch also was very obviously | 12:36 | |
interested in keeping these cases out of the courts, | 12:40 | |
and there was a good reason for that. | 12:43 | |
I feel that if the government | 12:47 | |
had put together courts of judges with life appointments | 12:50 | |
who were apolitical, | 12:55 | |
and became experts in terrorism, and things of that sort, | 12:58 | |
that things might've moved a little more smoothly. | 13:02 | |
But as I'll discuss later on, if you ask, | 13:06 | |
there were myriad problems | 13:10 | |
with how to deal with these cases. | 13:12 | |
Interviewer | So when was the first | 13:16 |
habeas case brought to the court? | 13:19 | |
Do you recall that? | 13:21 | |
Or do you- | 13:22 | |
- | I think it was... | |
I think soon after | 13:25 | |
Boumedine. | 13:26 | |
- | Boumedine? | |
- | Yes. | 13:27 |
Interviewer | And it wasn't sent to you, obviously? | 13:29 |
- | Well, I had case... | 13:32 |
No, I had cases other than the Uyghur cases. | 13:33 | |
It was a decision on the Chief Judge's part | 13:37 | |
to group these, the Uyghur cases, | 13:40 | |
because the issues looked to be very similar, | 13:42 | |
and there was some internal controversy | 13:45 | |
within the government about | 13:47 | |
whether they were terrorist or not, | 13:49 | |
enemy combatants or not. | 13:51 | |
So the Chief Judge assigned me those cases, | 13:53 | |
and I had other detainee cases as well. | 13:55 | |
Interviewer | So what was... | 13:58 |
Do you remember... | 13:59 | |
Do you recall your first detainee case? | 14:00 | |
- | I don't remember the name. | 14:02 |
I don't. | 14:04 | |
- | Do you remember the subject, | |
and just the habeas? | 14:06 | |
- | Yes. | |
It was a habeas much like many of the other cases | 14:07 | |
that attacked the evidence | 14:11 | |
that that was being interpreted | 14:13 | |
as proof of the individual's combatant status. | 14:16 | |
And right from the first case, | 14:21 | |
and I think other judges had a similar experience, | 14:25 | |
we could see... | 14:27 | |
Well, let me put it this way. | 14:30 | |
We wanted to expedite these cases, | 14:30 | |
'cause these people were incarcerated, | 14:32 | |
and they either needed to be tried and punished | 14:34 | |
or they needed to be released, | 14:36 | |
and that's the way judges think. | 14:37 | |
Get to it, and get through it, and finish it. | 14:39 | |
But right away, | 14:43 | |
we noticed that there were going to be inherent delays. | 14:44 | |
The lawyers for the detainees were doing | 14:51 | |
what they were supposed to do. | 14:54 | |
They were asking for discovery. | 14:55 | |
But the process had to be altered, | 14:57 | |
because much of the evidence... | 14:59 | |
Well, first of all, | 15:03 | |
all the lawyers had to be cleared , | 15:04 | |
had to have security clearances, | 15:06 | |
and high security clearances | 15:08 | |
if they wanted to be exposed to the evidence. | 15:10 | |
And then the process was very truncated, | 15:13 | |
in that the detainees' lawyers would be entitled, | 15:17 | |
eventually, to get just about all the evidence they wanted. | 15:21 | |
Often, not all the evidence, | 15:26 | |
but frequently, much of the evidence they wanted. | 15:27 | |
But then the question was, | 15:30 | |
the evidence that is turned over, | 15:33 | |
is this evidence that can be relied upon? | 15:36 | |
There were problems with interpreters that didn't... | 15:38 | |
Well, there are so many dialects | 15:44 | |
that didn't really satisfy the norm | 15:46 | |
as to what was being said. | 15:48 | |
There were problems with conflicts | 15:51 | |
within the federal government itself, | 15:53 | |
in that Homeland Security, the CIA, Department of Justice, | 15:54 | |
they all had different interpretations of what should be | 16:01 | |
top secret or not, | 16:06 | |
what should be shared or not, | 16:07 | |
or what could be shared. | 16:08 | |
Everything was in the kind of miasma of national security. | 16:10 | |
And so judges were kind of in the lurch as to what to do, | 16:14 | |
because, perhaps, the judge would get | 16:18 | |
the Department of Justice to agree to turn something over, | 16:21 | |
but then it would be obstructed by another agency, | 16:23 | |
who said, no, no, no, that can't be turned, | 16:25 | |
because it's a matter of national securities. | 16:26 | |
We're working on something there. | 16:28 | |
So I think the judges got very frustrated, | 16:30 | |
at least some of us, | 16:34 | |
with the kind of inherent delay of trying to get | 16:36 | |
the case to a status that we're used to, | 16:40 | |
which is turnover, so the evidence, | 16:42 | |
so everybody knows what it is, | 16:44 | |
and then let's proceed with an adjudication, | 16:45 | |
and it was hard to do that. | 16:48 | |
Interviewer | Did the judges talk among themselves | 16:50 |
of the problems that you just described? | 16:53 | |
- | Yes, we talked a bit. | 16:55 |
We never consulted with each other about outcomes | 16:58 | |
in one another's cases, | 17:02 | |
'cause judges don't do that usually. | 17:03 | |
But yes, the procedural problems, the logistics. | 17:05 | |
We shared strategies about how to get the evidence | 17:09 | |
one way or the other, | 17:13 | |
how to expedite. | 17:14 | |
And in the meantime, | 17:15 | |
because these detainees were, | 17:16 | |
many of them were detained for significant periods of time, | 17:21 | |
and many of them were very unhappy with the conditions, | 17:25 | |
collateral issues began to arise, | 17:31 | |
hunger strikes began to arise, | 17:32 | |
claims of brutality began to arise. | 17:35 | |
And these kind of became offshoots of the main issue, | 17:39 | |
whether or not there was sufficient evidence to prove, | 17:42 | |
to hold 'em, | 17:46 | |
and to demonstrate that it was an enemy combatant, | 17:47 | |
and so forth. | 17:49 | |
Some of them went on hunger strikes. | 17:52 | |
Then there were issues, should they be forced fed or not? | 17:53 | |
Or if they were mentally, | 17:57 | |
if they appear to have some mental issues, | 17:59 | |
should they be forced to take medication? | 18:01 | |
And so it became a real hornets nest of problems. | 18:04 | |
Interviewer | Would you say, | 18:10 |
it was very different from anything | 18:11 | |
you had experienced before? | 18:12 | |
- | Oh, yes. | 18:15 |
Very much so. | 18:16 | |
I mean, we had handled cases that required | 18:18 | |
top secret clearance, | 18:23 | |
spies, and things of that sort, | 18:26 | |
but even those cases were very straightforward. | 18:28 | |
The government claimed X. | 18:31 | |
The defense said, | 18:33 | |
they're not gonna be able to prove it. | 18:34 | |
And in the criminal arena, | 18:36 | |
the rules are pretty, pretty clear. | 18:38 | |
You turn it over, | 18:40 | |
and then let's go to trial, | 18:41 | |
let's pick a jury, and here we go. | 18:43 | |
But this was very different, very very different, | 18:45 | |
'cause we were not charged | 18:47 | |
or tasked with the ultimate adjudication. | 18:50 | |
We were entertaining petitions for writ of habeas corpus, | 18:52 | |
and that was kind of a different animal. | 18:55 | |
Indeed, as you know, | 18:59 | |
petitions for writ of habeas corpus are civil, not criminal. | 19:02 | |
So trying to infuse the criminal rules in a, | 19:05 | |
quote/unquote, "civil proceeding" itself became cumbersome. | 19:09 | |
Interviewer | And did Chief Hogan ever try to | 19:14 |
have a meeting with all the judges, | 19:17 | |
and tried to work out an approach | 19:18 | |
that might work for all the judges? | 19:21 | |
- | Yes, he did. | 19:23 |
He did a brilliant job of meeting with all the judges, | 19:24 | |
explaining how he, as the Chief Judge, | 19:27 | |
was gonna issue a general order | 19:30 | |
setting forth general guidelines for discovery, | 19:32 | |
and so forth, so that we'd all, | 19:35 | |
the parties and the judges would all be able to | 19:38 | |
work with a set of rules. | 19:41 | |
And we were all very grateful for that. | 19:43 | |
Interviewer | Did it work? | 19:46 |
- | Well, it did, | 19:47 |
to the extent that it could work, it did work. | 19:48 | |
The judges knew what to do, | 19:52 | |
but the rules kept on shifting, | 19:54 | |
as I'm sure we'll touch upon later. | 19:57 | |
What type of evidence was going to be turned over, | 20:04 | |
how to deal with assertions | 20:10 | |
that evidence could not be disclosed | 20:12 | |
because of national security, | 20:14 | |
how to counterbalance that | 20:16 | |
with the needs of the detainee, | 20:18 | |
to know what the details of the charge and the proof is. | 20:21 | |
So things remained, in my view, somewhat influx, | 20:25 | |
but thanks to this general order | 20:30 | |
that Chief Judge Hogan created, | 20:33 | |
we all had a general direction to go in. | 20:36 | |
But as I said, the rules began to change | 20:39 | |
(interposing voices) | 20:41 | |
when the Court of Appeals- | ||
Well, for awhile there, | 20:43 | |
I thought the judges knew pretty well. | 20:47 | |
All of us were quite experienced | 20:49 | |
how to filter through the evidence and pick out facts. | 20:52 | |
But the Court of Appeals, at one point, | 20:57 | |
strongly disagreed with our methodology, | 21:01 | |
strongly disagreed to the point where, | 21:04 | |
in instances that I can recall personally, | 21:07 | |
my findings of facts were not, were set aside, | 21:10 | |
and a whole other interpretation of what happened | 21:14 | |
and how it should be viewed | 21:19 | |
was super imposed by the appellate court. | 21:22 | |
Interviewer | Is that normal? | 21:26 |
- | No, that's very unnormal. | 21:27 |
And I'm not being critical of the Court of Appeals. | 21:31 | |
They worked hard, and they did a good job. | 21:34 | |
As you know, some of their decisions were | 21:37 | |
decisions that trial judges didn't like, | 21:39 | |
the kind of reversals and things. | 21:44 | |
But other decisions, as you know, | 21:45 | |
Parhat and others, | 21:46 | |
were really quite on the money. | 21:48 | |
They worked very hard to deal with these issues. | 21:49 | |
But no, you know, as we all know in the law, | 21:54 | |
when there's no jury, | 21:57 | |
the judge is the fact-finder, | 21:59 | |
and the judge may be wrong on the law, | 22:00 | |
and the Court of Appeals can say so. | 22:02 | |
But when the judge makes facts, | 22:04 | |
identifies facts, finds facts, | 22:06 | |
then, usually, that's the way it is. | 22:09 | |
And then the next step is to see whether or not the law, | 22:12 | |
what was appropriately applied to those facts. | 22:16 | |
But in some instances that I recall, | 22:18 | |
that's not the way it happened. | 22:19 | |
Interviewer | Why do you think? | 22:21 |
- | I haven't quite ever figured that out exactly. | 22:23 |
I mean, I could give you the easy answer, and say, | 22:26 | |
that in some instances, certain panels of appellate judges | 22:28 | |
were predisposed to find that habeas hadn't, | 22:32 | |
the habeas standard had not been met, | 22:41 | |
that these people would... | 22:43 | |
I could say that, | 22:44 | |
but it would be unfair speculation on my part. | 22:46 | |
I mean, it seemed that way that, for a while, | 22:50 | |
the six cases that were appealed, that went up, | 22:53 | |
all granting the writ, were all reversed. | 22:57 | |
Different judges. | 23:01 | |
So there is some grounds to speculate there, | 23:03 | |
but I can't really tell you why it happened the way it did. | 23:07 | |
Interviewer | Well, did you, | 23:12 |
the judges talk among themselves | 23:14 | |
and to wonder why the Court of Appeals was reversing? | 23:16 | |
Were there other people who had thoughts about | 23:19 | |
why that was done- | 23:21 | |
- | Well, the judges | |
did talk among themselves, | 23:23 | |
and they didn't, | 23:24 | |
in my recollection, they did it in a very intelligent way. | 23:26 | |
I mean, for example, | 23:29 | |
whether or not the standard for proof | 23:34 | |
should be proof beyond a reasonable doubt, | 23:37 | |
or by preponderance of the evidence. | 23:41 | |
This was a discussion that kind of arose | 23:43 | |
out of how the Court of Appeals was looking at things, | 23:46 | |
and whether certain types of evidence would be admissible, | 23:49 | |
whether certain presumptions would operate | 23:54 | |
to aid the government or the aid the fact-finder, | 23:58 | |
certain presumptions would generate out of, | 24:03 | |
if certain things were proved, | 24:04 | |
would a presumption arise out of that? | 24:06 | |
These were things that, of course, | 24:08 | |
were not in the books, | 24:10 | |
were not in any of the cases prior to these events. | 24:11 | |
And we all had to feel around, | 24:18 | |
and try to talk it out and see. | 24:20 | |
Not that we were collaborating | 24:22 | |
on how we should reach our outcomes, | 24:24 | |
but we were trying to just talk among ourselves | 24:26 | |
about the law, and about the law of evidence, | 24:29 | |
and about confidentiality, | 24:32 | |
and about undisclosed material evidence, | 24:34 | |
and the influences that torture, | 24:38 | |
allegations of torture might have on the credibility, | 24:40 | |
and how much we could consider that, | 24:43 | |
and what had to be proved with regard | 24:45 | |
to whether or not torture was an element | 24:46 | |
of the extraction of the evidence. | 24:48 | |
So you can see, it was complex. | 24:50 | |
Interviewer | Would you say it was messy? | 24:52 |
- | Yeah, it was messy, | 24:54 |
but our job was to try to find order out of chaos, | 24:56 | |
and I think the judges did a excellent job. | 25:03 | |
The judges with whom I worked on the US District Court | 25:07 | |
were very dedicated, very serious. | 25:10 | |
And even if we had, | 25:14 | |
some of us had kinda differing ideologies, | 25:15 | |
everybody was on the same page | 25:18 | |
about giving the detainees a fair process to look to, | 25:20 | |
and giving the world, for that matter, | 25:27 | |
a glimpse of how fair, | 25:28 | |
this is my personal opinion, | 25:31 | |
how fair the American system of justice was and could be. | 25:33 | |
Interviewer | Do you feel that | 25:40 |
the US government pushed back, | 25:41 | |
and that's part of the interference, | 25:44 | |
that's part of what created so many problems? | 25:45 | |
- | There was a lot of pushback. | 25:48 |
The Bush administration, | 25:53 | |
and even as we know in Kimba, | 25:54 | |
the Obama administration viewed this | 25:57 | |
as a very different set of circumstances. | 26:01 | |
No precedent having been established | 26:04 | |
in the history of our country, | 26:08 | |
where we were pursuing information | 26:10 | |
with respect to a broad range terrorism, | 26:13 | |
and issues of national security | 26:17 | |
that had killed thousands of Americans in one fell swoop. | 26:20 | |
So there was that element of, I think, anger. | 26:24 | |
I don't know if it was anger among the legislative | 26:28 | |
or among the executives so much, | 26:31 | |
but there was anger in the community. | 26:33 | |
And I think the representatives of the people, | 26:35 | |
the House and the Senate, | 26:40 | |
were sensitive to that, | 26:41 | |
and wanted to create a structure | 26:42 | |
that would render results. | 26:44 | |
Fine these people and punish them. | 26:48 | |
And, of course, the political branches are entitled, | 26:51 | |
and maybe responsible, | 26:55 | |
to listen and to react to the, | 26:56 | |
but not the courts. | 26:58 | |
Maybe it was Socrates that said that, | 27:01 | |
"The law is reasoning without emotion", | 27:04 | |
and that's what we were trying to do, | 27:08 | |
to look at these things and find a path. | 27:10 | |
Interviewer | I think that's really well said. | 27:14 |
So for the audience and some in general public, | 27:16 | |
can you explain a little bit about the separation of powers, | 27:20 | |
and the role of the courts, | 27:22 | |
and why the courts were not able to, I guess, | 27:23 | |
effectuate their role well | 27:27 | |
given, what you called, chaos, or the complexities? | 27:29 | |
- | Well, it's inherent | 27:33 |
and expected that there's going to be | 27:35 | |
tension between the branches. | 27:39 | |
Two of them are political branches, | 27:42 | |
and the third, | 27:43 | |
the judicial branch is not political, | 27:44 | |
in the sense that it's, | 27:47 | |
they're not voted in, so to speak. | 27:48 | |
And so the legislative branch, as we know, | 27:51 | |
is the branch that is responsible to write the laws. | 27:55 | |
The Senate and the House, | 28:00 | |
they write, and they vote, and they create the laws, | 28:01 | |
the black letter law that best serves the country, | 28:04 | |
and best reflects the will of the country. | 28:08 | |
The executive branches, as we know, | 28:11 | |
is the branch that enforces the law. | 28:13 | |
It sees to it, that whatever's been written, | 28:15 | |
whatever's been mandated by the, is done. | 28:17 | |
And then the judicial branch is the one | 28:21 | |
that sits back and waits, | 28:23 | |
and it's reactive. | 28:24 | |
It's not proactive, it's reactive. | 28:26 | |
And sees what the legislative | 28:28 | |
and/or the executive branch have done, | 28:30 | |
and then waits to see, | 28:33 | |
examines it to see if | 28:35 | |
it is consistent with the Constitution, | 28:38 | |
and with the governing laws, federal laws. | 28:41 | |
So as to the federal government, the federal law. | 28:46 | |
The judicial branch has a responsibility to be detached. | 28:51 | |
And although, of course, | 28:55 | |
the judicial branch is also a servant of the people, | 29:00 | |
it serves the people in a very different way. | 29:02 | |
We're not there to make the people happy. | 29:04 | |
We're not there to respond to a constituency. | 29:08 | |
And I'm not being critical. | 29:10 | |
I'm just saying, it's different. | 29:11 | |
We are supposed to sit back and look at things, | 29:14 | |
and look at what's been written by the legislative, | 29:16 | |
and passed by the legislative branch, | 29:19 | |
and look at how the executive is acting on those laws, | 29:21 | |
and then decide how those laws interface, | 29:24 | |
and if those laws interface fairly with the Constitution | 29:29 | |
and the people that are, the law being scrutinized, so. | 29:34 | |
Interviewer | And so we'll move on | 29:39 |
to your particular cases. | 29:41 | |
But I just... | 29:42 | |
I want people to kind of understand, | 29:43 | |
that there's a general frustration among the court members, | 29:44 | |
because you weren't able to do the job that you understood | 29:48 | |
given all that was going on outside and that. | 29:52 | |
Could you say, politics was trying to | 29:56 | |
insinuate its way into the court decisions? | 29:58 | |
- | Well, yes, | 30:02 |
and I'm not speaking about the DC Circuit. | 30:06 | |
I'm talking about the (mumbles). | 30:08 | |
It's, of course, understandable | 30:10 | |
that the political branches have | 30:13 | |
many interests to meet and satisfy, | 30:15 | |
national, as well as international interests, | 30:20 | |
and not all the members of Congress, | 30:24 | |
and perhaps, not all the members of the executive branch, | 30:31 | |
have the same perspective | 30:35 | |
about how the law should be applied | 30:36 | |
in a particular scenario. | 30:39 | |
So for the courts to be tasked | 30:42 | |
with something this important, | 30:49 | |
with anything, but something this important, | 30:50 | |
the courts are gonna revert | 30:53 | |
to the rules that it understands, | 30:55 | |
to the procedures that it understand, | 30:56 | |
and the approach that it knows renders justice, | 30:58 | |
the yin and the yang, | 31:04 | |
the up and the down, the black and the white, | 31:05 | |
so that there is a dynamic that creates | 31:07 | |
in its final product a just result. | 31:10 | |
So yes, there was some frustration | 31:14 | |
on the part of the courts, | 31:18 | |
because it felt, to some extent, obstructed. | 31:21 | |
There would be a hearing, and the judge, | 31:28 | |
I'll use myself as an example, | 31:31 | |
'cause I didn't sit in on any other judge's proceedings, | 31:32 | |
but I think that they were probably similar. | 31:34 | |
The judge would say, well, let's look at the issue. | 31:38 | |
There's a question here as to whether this gentleman... | 31:41 | |
Of course, the gentleman was never present, | 31:44 | |
'cause he couldn't be present. | 31:45 | |
This accused, this detainee is an enemy combatant, | 31:47 | |
and therefore, subject to the types of sanctions | 31:51 | |
that the legislature, and the executive, | 31:56 | |
and the law deems appropriate. | 32:01 | |
But see, we are not supposed to be looking at the outcome. | 32:02 | |
We're supposed to be looking at the process. | 32:07 | |
And so the judge says, | 32:09 | |
all right, well, the way to do this | 32:11 | |
is to give the detainee's lawyers | 32:12 | |
all the information you are relying on, | 32:15 | |
so that the detainee's lawyer can then argue, | 32:18 | |
and there'll be this combustion | 32:20 | |
between what you claim and what they claim, | 32:22 | |
and then I'll sit back, and I'll look at it, | 32:24 | |
and I'll decide whether there's been | 32:26 | |
a preponderance of evidence one way or the other, | 32:28 | |
and there'll be an outcome, and then let's move on. | 32:30 | |
But it just couldn't move that way, | 32:33 | |
because of the issues I mentioned earlier. | 32:35 | |
Interviewer | And would you, | 32:38 |
or would you or the other judges | 32:41 | |
ever get frustrated at the government, and say, | 32:43 | |
you need to do your job, and you're not doing your job? | 32:44 | |
- | Yes, I think all of the judges, at some point or another, | 32:47 |
based on what I heard judges say, | 32:51 | |
would demand, would require that something be done, | 32:54 | |
whether it was providing evidence, | 32:59 | |
or whether it was acting on a promise to transfer, | 33:03 | |
or in some instances, acting on a directive to release. | 33:07 | |
Interviewer | And why do you think | 33:14 |
the government would stonewall? | 33:15 | |
Did the judges talk about that? | 33:17 | |
- | Well, I don't recall any specific conversation | 33:21 |
precisely on that point, | 33:24 | |
but when you're dealing with a system | 33:27 | |
that operates on advocacy, | 33:32 | |
as you know, Professor, | 33:34 | |
there is an arena where people wanna win, | 33:37 | |
and advocacy is often accompanied by | 33:40 | |
this very powerful desire to prevail. | 33:45 | |
Now, in this sense, no one's immune from that, | 33:48 | |
not the judge, not the defense, not the government, | 33:52 | |
but it's there. | 33:56 | |
And sometimes, I think, in these situations, | 33:57 | |
the government stubbornly adhere to a position | 34:02 | |
because it did not want to yield to the other side | 34:06 | |
something that would suggest that it was | 34:09 | |
failing to do its job in the maximum efficient way. | 34:13 | |
Interviewer | I think people can | 34:19 |
read between the lines on that, so. | 34:20 | |
(both chuckling) | 34:22 | |
Okay, well, let's talk about | 34:23 | |
the first habeas case that you... | 34:24 | |
Well, the habeas cases you got were all frustrating, | 34:29 | |
and then, eventually, you got the Uyghur cases. | 34:31 | |
Do you want to talk to that? | 34:35 | |
Are there any other habeas cases | 34:36 | |
before the Uyghur cases worth addressing? | 34:37 | |
- | Now, the other cases, | 34:41 |
before the Uyghur cases came my way, | 34:42 | |
were pretty much as I described. | 34:45 | |
There were instances where it was clear. | 34:48 | |
There were some instances where it was clear | 34:51 | |
that the evidence strongly incriminated | 34:53 | |
the detainee as an enemy combatant, | 34:57 | |
the way the evidence was well marshaled, well represented, | 35:01 | |
and it was a coherent picture of | 35:09 | |
how this person moved from place to place, | 35:11 | |
and participated in training of Taliban | 35:14 | |
or other enemy combatants. | 35:19 | |
But then there were those cases that | 35:21 | |
the evidence was much more vague, | 35:24 | |
either because it was not substantively persuasive, | 35:26 | |
or because there were credibility issues that undermined it. | 35:32 | |
Interviewer | Did you feel... | 35:36 |
Were you worried that | 35:37 | |
maybe if you say this person did, | 35:40 | |
there was not sufficient evidence to hold them, | 35:43 | |
were you worried that you might be releasing a terrorist? | 35:45 | |
- | Well, there's always that concern, you know, in any case. | 35:48 |
What's the public opinion gonna be? | 35:52 | |
But, I mean, if a judge goes through that, | 35:54 | |
has that feeling, that reaction, | 35:57 | |
it's only very briefly. | 35:59 | |
I mean, I think you have that reaction for a moment, | 36:01 | |
and then you say, but that's not my job. | 36:04 | |
My job, I do my piece of the the task, | 36:06 | |
and then other things have to happen. | 36:11 | |
If the country or the coalition needs protection | 36:13 | |
then it has to do something itself. | 36:18 | |
The judge's role is not to say, oh, I wonder if, | 36:20 | |
although the evidence is deficient, | 36:23 | |
and he has to be released, | 36:24 | |
I wonder if he's a bad guy? | 36:25 | |
I don't think it could work that way. | 36:27 | |
Interviewer | So when you did find in some case | 36:30 |
that there wasn't sufficient evidence to hold the person, | 36:33 | |
you said the prisoner | 36:37 | |
should be released? | 36:38 | |
- | Yes. | |
Interviewer | And then, do you recall, | 36:40 |
before the Uyghur cases, | 36:42 | |
if those cases were appealed | 36:43 | |
to the Court of Appeals? | 36:44 | |
- | Some were appealed, | |
and some were not. | 36:46 | |
I seem to remember, that in a couple of instances, | 36:49 | |
there was an appeal and the cases were reversed, | 36:54 | |
because the circuit felt that there were, | 36:57 | |
that the analysis and the application of the presumptions | 37:03 | |
did not support my conclusion. | 37:07 | |
I don't have any specific recollections, | 37:11 | |
but I seem to remember there was a case or two, at least, | 37:12 | |
where that happened. | 37:15 | |
And then it would be sent back to me, | 37:16 | |
and then I would have to address the issues. | 37:18 | |
If the Court of Appeals specified what needed to be done, | 37:22 | |
that was always easier, okay? | 37:26 | |
And this is the gap, | 37:27 | |
let's fill it in one way or the other. | 37:29 | |
But sometimes, the the Court of Appeals was not as specific, | 37:31 | |
and therefore, I or the trial judge had to discern | 37:35 | |
and divide what the issue was, | 37:43 | |
and where the deficiencies were, | 37:46 | |
and call upon counsel to illuminate, and proceed from there. | 37:47 | |
Interviewer | Did you ever rule to release someone | 37:52 |
and then the person wasn't released, | 37:54 | |
not because the Court of Appeals overturned it, | 37:56 | |
but just, the government just didn't release him anyway? | 37:57 | |
Did that ever occur? | 38:00 | |
- | No, I don't think that occurred, | 38:01 |
not to my recollection, | 38:03 | |
but there were times when the release was very delayed, | 38:04 | |
and, of course, I would be informed by | 38:09 | |
counsel for the detainee that, | 38:11 | |
you know, you ordered this a month or two ago, | 38:12 | |
but it hasn't happened yet, | 38:14 | |
then I'd call the people in, | 38:16 | |
and the government would present its explanation | 38:17 | |
as to why it hadn't happened, | 38:20 | |
and then I would try to | 38:21 | |
escalate their interest in having it done. | 38:26 | |
And I don't think the government ever resisted beyond that, | 38:30 | |
until the Uyghurs. | 38:36 | |
- | Uyghur, mm-hmm. | |
Well, sure. | 38:38 | |
Let's go into the Uyghurs. | 38:39 | |
We always can go back to it, | 38:40 | |
but I wanted the background. | 38:41 | |
I thought it was important for the viewers. | 38:42 | |
But let's go into the Uyghur case, | 38:43 | |
the first Uyghur case that you got, | 38:46 | |
and maybe we can go from there, | 38:47 | |
- | All right. | 38:49 |
- | and you can just | |
give us the chronology? | 38:50 | |
- | Although I don't know the reason why | 38:52 |
the chief judge decided to send all the Uyghur cases to me. | 38:54 | |
This being an unusual process, | 38:58 | |
where the chief judge is actually directing cases to people. | 38:59 | |
But I wound up with the 17 Uyghurs | 39:04 | |
I did not know what a Uyghur was. | 39:08 | |
I had not heard the term before, | 39:11 | |
but the lawyers on both sides were very good | 39:13 | |
in bringing me up to speed, | 39:17 | |
giving me background. | 39:20 | |
And what I discerned from what was presented, | 39:21 | |
looking at it from the detainee's point of view, | 39:25 | |
that this was a group of people, | 39:29 | |
mostly from Turkestan, | 39:32 | |
who had religious convictions, | 39:34 | |
primarily of a Muslim faith, | 39:37 | |
and that they were being oppressed, | 39:40 | |
and discriminated against, | 39:45 | |
and by the Chinese government, | 39:47 | |
which desired them to be fully integrated or gone. | 39:51 | |
And the Chinese government had gone so far | 39:56 | |
as to label them as terrorists. | 39:58 | |
Because this allegation of terrorism | 40:02 | |
became active as violence, | 40:04 | |
and actual oppression, | 40:07 | |
and brought danger onto the the situation | 40:09 | |
that these Uyghurs were experiencing, | 40:12 | |
they fled, and they fled to various places. | 40:13 | |
First, to Afghanistan, | 40:18 | |
where for a while, prior to 9-1-1, | 40:21 | |
they were doing just fine, if I recall correctly. | 40:26 | |
They were living, | 40:29 | |
and, of course, there was a Muslim population, | 40:30 | |
and they were there peaceful. | 40:32 | |
But, of course, there were those in these villages, | 40:33 | |
in these places, that they had housed themselves in | 40:37 | |
that were not non-violent people, | 40:41 | |
who didn't care about the Chinese government, | 40:45 | |
and had designs to fight the struggle, | 40:48 | |
to bring the struggle to the west, western alliance. | 40:53 | |
And so when 9-1-1 occurred, and things escalated, | 40:57 | |
many of these Kurds began to move towards Afghanistan. | 41:03 | |
They were, if I recall correctly, | 41:07 | |
stopped at the border, and then arrested. | 41:09 | |
Many of them were sold to the American government | 41:14 | |
for large sums of money | 41:17 | |
by persons in positions of authority. | 41:19 | |
And this was a great incentive in that place at that time | 41:26 | |
to herd the Uyghurs in with the | 41:32 | |
rest of the combatant population, | 41:34 | |
and that's how they wound up in Guantanamo. | 41:37 | |
Interviewer | And so what was their claim | 41:40 |
that you heard when you first got the first case? | 41:43 | |
(interposing voices) | 41:46 | |
- | Well, the claim was | |
that they were not enemy combatants, | 41:48 | |
and that they were being improperly, | 41:50 | |
and ultimately, as decided by the courts, | 41:52 | |
illegally detained. | 41:56 | |
and this whole issue of | 41:58 | |
whether or not they were enemy combatants was central. | 41:59 | |
The fact that they had been kind of dragnetted | 42:06 | |
into incarceration and detention, | 42:09 | |
was the fact that they wanted to distinguish and to explain, | 42:15 | |
because they did not want to be | 42:19 | |
adjudicated enemy combatants, | 42:23 | |
because they were in a wrong place at the wrong time. | 42:26 | |
And so my impression was, | 42:29 | |
that I needed to look very closely | 42:32 | |
at the circumstances of their arrest, their detention, | 42:34 | |
and to look closely at the allegations | 42:39 | |
to see if there was any truth | 42:42 | |
to the fact that they were not enemy combatants, | 42:44 | |
and that they were being improperly and illegally detained. | 42:46 | |
And that's how the case began to evolve at the outset. | 42:51 | |
Interviewer | And what was the | 42:55 |
government's position at that point? | 42:56 | |
- | Well, you know, this is an interesting question, | 42:58 |
because, perhaps, as far back as 2003, | 43:00 | |
I think the government already had a strong sense | 43:05 | |
that these were, these Uyghurs people, | 43:08 | |
these Uyghur people were not enemy combatants, | 43:10 | |
but they were dragging their feet. | 43:14 | |
And as the scenario unfolded, | 43:15 | |
it became clear that there were interests... | 43:21 | |
Well, first of all, | 43:26 | |
that the government was in a very difficult position. | 43:27 | |
These individuals could not be sent back to China, | 43:32 | |
because, as terrorists, | 43:35 | |
they probably would have been executed. | 43:37 | |
As time evolved, | 43:45 | |
and these cases came down one after the other, | 43:46 | |
Rasul, and Hamdan, and Boumediene, | 43:49 | |
and then, ultimately, Parhat, | 43:52 | |
as these cases evolved, | 43:54 | |
and the courts became more and more convinced | 43:56 | |
that it had the power and authority to act | 43:59 | |
in a general sense on habeas corpus, | 44:04 | |
and in my situation, to, even more, | 44:06 | |
my situation being even stronger, | 44:12 | |
in that, as time went by, | 44:13 | |
the government admitted | 44:16 | |
that these were not enemy combatants. | 44:20 | |
The one that they try to bring up, Parhat, in, | 44:23 | |
I think it was 2008. | 44:26 | |
When that case was treated by the Court of Appeals, | 44:29 | |
the Court of Appeals said, | 44:32 | |
no, the evidence that you presented is not persuasive. | 44:33 | |
You either have to release him. | 44:37 | |
You have to convene a CSRT, | 44:39 | |
a tribunal, to adjudicate him | 44:46 | |
within a fashion consistent with this opinion, | 44:49 | |
or you have to transfer them, him. | 44:54 | |
Well, soon thereafter, the government said, | 44:59 | |
no, well, we don't claim any further | 45:00 | |
that he's an enemy combatant. | 45:02 | |
And they conceded that the status of all the other Uyghurs | 45:05 | |
was the same as his, | 45:08 | |
so that these people were being held, | 45:09 | |
they didn't say illegally, | 45:12 | |
but were being held, | 45:14 | |
but not as enemy combatants, | 45:15 | |
and that the effort was gonna be made to transfer them, | 45:17 | |
to move them out of Guantanamo to another venue. | 45:21 | |
Interviewer | And what was the issue then before you? | 45:26 |
- | The issue before me was, | 45:29 |
what needed to be done? | 45:35 | |
Because if... | 45:37 | |
As in the hearing, the ultimate hearing, | 45:38 | |
that resulted in my decision, my pronouncement, | 45:40 | |
I asked, "Now, let's get this clear". | 45:44 | |
"These people pose no danger to the United States." | 45:50 | |
"Is that correct?" | 45:55 | |
"Yes." | 45:56 | |
"They pose no danger to the coalition members?" | 45:57 | |
"Yes." | 46:00 | |
"They are not, in your view, terrorists?" | 46:01 | |
"Yes." | 46:04 | |
"And they are not enemy combatants?" | 46:05 | |
"Yes." | 46:07 | |
"But you are holding them?" | 46:08 | |
"Yes." | 46:09 | |
"And when are you going to release them?" | 46:10 | |
"We don't know." | 46:12 | |
"So does that mean they're gonna be held indefinitely?" | 46:14 | |
And they said, "Yes, but we have the power to do that, | 46:17 | |
because these are..." | 46:21 | |
This was the explanation that the government presented, | 46:22 | |
or that I'm paraphrasing, | 46:25 | |
and the lawyer was very eloquent and articulate, | 46:26 | |
but I'm paraphrasing. | 46:28 | |
"Yes, we have the power to do this." | 46:30 | |
"We have the responsibility to do this | 46:32 | |
because we're kind of trying to clean up things, | 46:33 | |
trying to organize things, | 46:37 | |
and this effort with the Uyghurs is part of that, | 46:38 | |
and it's very complex." | 46:42 | |
Well, the complexity of the situation, the root of it, | 46:44 | |
was the resistance the Chinese government was having | 46:48 | |
to these detainees being released. | 46:53 | |
And I found out, that the upshot of that was, | 46:59 | |
that the Chinese government was expressing its displeasure | 47:03 | |
to any country that the United States approached | 47:07 | |
with a view towards moving them to that particular country. | 47:12 | |
So they were there indefinitely. | 47:16 | |
They were stuck without a place to go. | 47:19 | |
They were moved, removed from their culture, | 47:22 | |
removed from their families, | 47:24 | |
removed from their place of upbringing, | 47:25 | |
largely restrained from practicing their religion | 47:31 | |
in a way that was consistent with their beliefs, | 47:37 | |
and there was no agenda for releasing them. | 47:41 | |
The Parhat decision, | 47:49 | |
which came down in 2006, I think, 2008, | 47:50 | |
it had very explicit language in it. | 47:58 | |
The DC Circuit was very explicit. | 48:00 | |
And in one paragraph, it stated that, | 48:02 | |
referring to the right of Mr. Parhat | 48:07 | |
to have a hearing before a federal judge, it says, | 48:09 | |
"And in that instance, | 48:11 | |
the court would have the power to release, | 48:16 | |
would have the power, | 48:20 | |
and the authority to release". | 48:21 | |
Well, Boumediene had already spoken to that, | 48:23 | |
had already identified habeas corpus | 48:28 | |
as the means through which these people could be released, | 48:32 | |
not only in the Uyghurs, but I mean, generally. | 48:35 | |
The way I learned the law is, | 48:40 | |
that if you have a solution, | 48:42 | |
if you have a mandate, | 48:50 | |
there has to be a remedy. | 48:51 | |
So if there's a directive that the Constitution | 48:52 | |
and the law of habeas corpus directs that | 48:55 | |
the body be released, be delivered into freedom, | 48:58 | |
but there is no way to do that, | 49:03 | |
because you're dealing with someone who refuses | 49:06 | |
or is unable to meet that responsibility. | 49:09 | |
Then the court, as Parhat had said, | 49:13 | |
has the authority to order that person released. | 49:15 | |
Well, it was clear that the order to have them released | 49:18 | |
was obstructed by these factors, | 49:22 | |
the resistance that China had, | 49:25 | |
and the fear that many of these, | 49:27 | |
I don't wanna call it fear, | 49:31 | |
the reluctance that many of these countries had | 49:33 | |
to buck China. | 49:36 | |
So I said, "Okay, well, then they should be brought here". | 49:37 | |
And- | 49:42 | |
- | Here, meaning? | |
- | My courtroom, United States of America. | 49:45 |
And when they were brought here, | 49:48 | |
then I would want | 49:49 | |
the Department of Homeland Security, Department of Justice, | 49:52 | |
the US Attorney's Office, the CIA, | 49:55 | |
anyone who felt that they needed a voice | 49:57 | |
to help structure | 50:01 | |
the conditions under which | 50:06 | |
they would be released into the community | 50:07 | |
would be invited to come. | 50:10 | |
Now, in the meantime, | 50:11 | |
the courtroom was absolutely... | 50:12 | |
They were standing. | 50:14 | |
I had never seen anything like this. | 50:15 | |
There was standing room only. | 50:16 | |
The people were flowing out the door into the corridor, | 50:17 | |
and it's a big courtroom. | 50:20 | |
Many Uyghur people. | 50:22 | |
And most interestingly, | 50:25 | |
many people there from various communities, | 50:27 | |
not only the Uyghur community, | 50:30 | |
of which it was a substantial community in Virginia, | 50:31 | |
but the faith community, | 50:34 | |
various components of | 50:37 | |
the faith community, and- | 50:41 | |
- | What is a faith community? | |
- | By that, I mean, the Lutheran church, the Catholic church, | 50:43 |
all of these- | 50:48 | |
- | Christian? | |
- | Christian and non-Christian, I believe, | 50:49 |
church representatives, faith representatives, | 50:54 | |
who were there to provide assistance. | 50:56 | |
We can get him a job. | 50:58 | |
We can put them up. | 50:59 | |
We have places where they can live. | 51:01 | |
We have a Uyghur community | 51:02 | |
into which they can be integrated with, and so forth. | 51:04 | |
And all of that was very encouraging, | 51:07 | |
and it seemed, to me, sensible. | 51:09 | |
That they were not terrorist. | 51:10 | |
There was no danger to America. | 51:11 | |
They were gonna be held indefinitely | 51:13 | |
if something didn't happen. | 51:15 | |
So here we are. | 51:16 | |
We have resources and support in abundance. | 51:18 | |
And one or two of the Uyghur people came forward | 51:22 | |
with representatives of the faith. | 51:25 | |
Whether they actually spoke or not, | 51:29 | |
but they presented themselves | 51:31 | |
in the front of the courtroom near the well of the court. | 51:32 | |
And my recollection is, | 51:34 | |
that I took note of that, | 51:39 | |
and I thought that, | 51:40 | |
when I said that, "They should be brought here", | 51:41 | |
I was looking at the possibility, | 51:44 | |
the very real, tangible, palpable resources | 51:46 | |
that these people presented to these non-combatant, | 51:50 | |
non-dangerous, non-terrorist people, | 51:53 | |
but the government said, "You can't do that". | 51:56 | |
And I said, "Well, I just did it". | 51:59 | |
And, of course, then they took an appeal. | 52:02 | |
And the panel that reviewed my refusal to stay the case, | 52:03 | |
they wanted me to issue a stay pending, | 52:09 | |
and I said, "No". | 52:12 | |
They went to the Court of Appeals. | 52:13 | |
The Court of Appeals issued the stay. | 52:14 | |
And the two of the three | 52:16 | |
judges who presided over | 52:21 | |
that part of the case, | 52:25 | |
they said that, the appeal, | 52:28 | |
that the stay should be imposed. | 52:31 | |
A third one did not. | 52:32 | |
The third judge dissented. | 52:34 | |
And the stay was given, | 52:36 | |
and the case went up on appeal. | 52:42 | |
Interviewer | Well, before we go into the procedural part, | 52:44 |
I wanna go back to what happened. | 52:46 | |
How many days/weeks did this case go on? | 52:48 | |
And from the beginning, | 52:51 | |
were you thinking, that given what you just described, | 52:53 | |
you were gonna release these Uyghurs into the US? | 52:56 | |
How did it all evolve- | 52:59 | |
- | Well, it evolved | |
when the case came in, | 53:00 | |
maybe a month or two before the ruling I've just referenced, | 53:04 | |
and I read all the papers. | 53:10 | |
I held status hearings, | 53:12 | |
at which time the lawyers were invited in | 53:14 | |
to tell me what was going on, | 53:19 | |
and to give me information about the status of matters, | 53:20 | |
and what was being done, what was anticipated, | 53:24 | |
what was contemplated, and so forth. | 53:26 | |
The lawyers for the Uyghurs were very, very motivated, | 53:28 | |
as were the lawyers for the government, | 53:35 | |
but highly motivated, | 53:37 | |
and made very strong arguments, sensible arguments, | 53:38 | |
about the unfairness of the situation. | 53:41 | |
But I didn't... | 53:45 | |
I did not make up my mind to release them, | 53:46 | |
because I knew that there needed to be more exploration | 53:48 | |
in order to make sure | 53:53 | |
that the American public was comfortable, if possible, | 53:54 | |
and that all parties had an opportunity to deal with it. | 53:58 | |
Maybe there was something I was overlooking | 54:04 | |
that I needed to pay attention to? | 54:06 | |
So I did not make... | 54:07 | |
Even in my own mind, | 54:09 | |
I did not make that snap decision. | 54:11 | |
But as things evolved, | 54:13 | |
and the government produced nothing | 54:14 | |
but the suggestion of more delay and indefinite detention, | 54:17 | |
I decided that something had to take place. | 54:22 | |
Male | We need to pause for just a sec | 54:25 |
for a battery change. | 54:26 | |
Interviewer | Oh, okay, okay. | 54:28 |
Do you want some water | 54:29 | |
or tea maybe? | 54:30 | |
- | No, I'm good. | |
Interviewer | Okay. | 54:32 |
So before you made that decision, | 54:34 | |
did you have a chance, | 54:38 | |
or did you feel comfortable talking to | 54:39 | |
some of the other judges as to where this might go | 54:41 | |
and whether you should go in that direction? | 54:44 | |
- | No. | 54:47 |
I did not ever discuss, except on procedural points. | 54:52 | |
If there was a procedural point, | 54:56 | |
and I wanted some guidance or some feedback, I might. | 54:57 | |
But in terms of a substantive outcome, | 55:01 | |
I never discussed it with other judges, | 55:04 | |
'cause I felt uncomfortable doing that, | 55:06 | |
and I think I would have made other judges uncomfortable | 55:09 | |
if they believed that I was asking them | 55:11 | |
to help me make a decision. | 55:13 | |
Interviewer | And were you planning, | 55:15 |
the way this decision was structured, | 55:17 | |
to release all 17 men into the US? | 55:19 | |
It was only a few of them before you. | 55:22 | |
Do you recall? | 55:24 | |
- | Yes. | |
It was my intention to have all of them brought here. | 55:25 | |
And then, if there was a reason | 55:29 | |
that one or more could not be paroled | 55:33 | |
or released into the community, | 55:35 | |
I was sure that Homeland Security, | 55:37 | |
or the Department of Justice, | 55:39 | |
or the US Attorney's Office would be able | 55:41 | |
to bring that to the floor, | 55:43 | |
and then I could address it, | 55:45 | |
and revise my decision, | 55:47 | |
or craft it in a way, again, | 55:49 | |
that would put the public at ease. | 55:51 | |
Interviewer | And what influence | 55:55 |
or what effect did it have on you to see | 55:58 | |
the courtroom so overcrowded, | 56:00 | |
and that you mentioned, the faith community was in there? | 56:02 | |
What did that mean to you? | 56:06 | |
- | Well, I had no idea until I walked into the courtroom | 56:07 |
that this case had attracted so much attention. | 56:11 | |
After all, I mean, how many people knew about the Uyghurs? | 56:15 | |
But I began to walk towards | 56:19 | |
from my chambers to the courtroom, | 56:23 | |
my courtroom deputy came out, and she said, | 56:27 | |
"Judge, there's a lot of people in the courtroom". | 56:29 | |
And I said, "Really?" | 56:32 | |
She says, "Yes, they're standing all over the place, | 56:33 | |
and they're going out into the hall". | 56:35 | |
"Is there anything you want me to do?" | 56:37 | |
And I said, Well, tell the marshal that..." | 56:38 | |
I didn't know who these people were, | 56:40 | |
and what their motives or intentions were. | 56:42 | |
So I said, "Tell the marshal to standby | 56:45 | |
in case things get unruly". | 56:47 | |
And she said, "Okay". | 56:50 | |
So she went in and told the marshal, and I walked in, | 56:51 | |
but as soon as I walked in, | 56:53 | |
I could see from their appearance | 56:55 | |
that these were people from the various communities, | 56:57 | |
including Uyghurs, who were dressed in a way, | 57:00 | |
or had emblems, either by their dress or otherwise, | 57:03 | |
that they were part of that Uyghur community. | 57:09 | |
I could see that why they were here. | 57:10 | |
So yes, it did influence me, | 57:14 | |
to the extent that I knew that there was an organized | 57:18 | |
and thoughtful group of people | 57:23 | |
prepared to act or speak in a way | 57:26 | |
that would inform all of us. | 57:31 | |
Interviewer | And at the point that you came to this, | 57:36 |
had you already then made your decision? | 57:39 | |
You hadn't yet articulated it, | 57:41 | |
but you've made your decision at that point | 57:43 | |
you're gonna release him, | 57:45 | |
or had you articulated it by then? | 57:46 | |
- | When I walked into the courtroom? | 57:47 |
- | Yeah. | 57:48 |
- | No. | |
Because I wanted to give the government | 57:49 | |
an opportunity to tell me something I didn't know. | 57:51 | |
I walked in the courtroom believing | 57:55 | |
and understanding that these were not enemy combatants. | 57:57 | |
Now, if there had been a development | 58:01 | |
that I was unaware of since the last hearing, | 58:03 | |
and they would say, | 58:05 | |
well, we have just learned that Mr. So-and-So, | 58:06 | |
part of this Uyghur, | 58:09 | |
then I would have listened to that. | 58:11 | |
So I didn't. | 58:12 | |
No, I had not made up my mind. | 58:13 | |
I had a certain predisposition | 58:15 | |
towards wanting to get more solid, | 58:20 | |
a more solid and curative response from the government, | 58:23 | |
but it'll be a month. | 58:27 | |
We have to identify some countries. | 58:28 | |
But none of that came to me, | 58:30 | |
so I felt that I had no alternative. | 58:31 | |
Interviewer | Were you worried about the reaction | 58:34 |
for your decision? | 58:36 | |
- | No, I was not. | 58:37 |
Interviewer | Because? | 58:39 |
- | Well, I'm appointed for life. | 58:42 |
I didn't feel I needed to be worried. | 58:45 | |
All I needed to do, is do the right thing, | 58:47 | |
and if people didn't like it, | 58:50 | |
and if the media didn't like it, | 58:51 | |
that's part of the job, | 58:54 | |
is to deal with other people's | 58:56 | |
difference of opinion and dissatisfaction. | 59:00 | |
Interviewer | And there's a term that you've used, | 59:03 |
and other people have used, | 59:05 | |
about having a right without a remedy. | 59:06 | |
Can you explain that to the audience? | 59:08 | |
- | Yes. | 59:11 |
In the law, | 59:12 | |
it searches for many things. | 59:13 | |
But when an issue is presented, | 59:17 | |
one of the things that a judge, | 59:20 | |
and I'm sure members of Congress, | 59:23 | |
and the executive branch as well, look at, | 59:25 | |
is there a right involved here? | 59:28 | |
Is there a claim that is supported by a right? | 59:31 | |
You know, the civil rights movement, as you know, | 59:36 | |
sprung from finding rights that were actually there, | 59:39 | |
but had been buried, | 59:43 | |
and bringing them to the surface. | 59:45 | |
So the law looks at it, | 59:46 | |
is there a right here? | 59:48 | |
And then if there is a right, | 59:50 | |
then, okay, what is the remedy? | 59:53 | |
How do we implement getting... | 59:54 | |
How do we implement measures to get this right satisfied? | 59:58 | |
And so I could not... | 1:00:03 | |
When I read Boumediene and the other cases, | 1:00:06 | |
it seemed clear, that the appellate court, | 1:00:11 | |
Supreme Court, understood clearly. | 1:00:13 | |
Justice Kennedy wrote | 1:00:17 | |
a brilliant introduction to the Boumediene | 1:00:19 | |
going way back into the history of | 1:00:23 | |
what a writ was in England, and how it evolved, | 1:00:25 | |
and what the core was, | 1:00:29 | |
and calling the jailers in, | 1:00:30 | |
so that the jailers could explain | 1:00:32 | |
why this person was in court, and so forth. | 1:00:34 | |
I mean, it was clear to me, | 1:00:36 | |
that the judiciary was taking a different view | 1:00:38 | |
about what needed to be done | 1:00:42 | |
in order to you get these detainees, | 1:00:43 | |
not necessarily Uyghur, but the detainees, | 1:00:46 | |
to the next stage. | 1:00:47 | |
So the right was established through all those cases. | 1:00:50 | |
It was first, Rasul identified the right to writ. | 1:00:54 | |
And then Hamdan said, yes, | 1:01:00 | |
not only that, but the Geneva Convention applies. | 1:01:03 | |
And then we had Boumediene, | 1:01:06 | |
(interposing voices) | ||
which spoke clearly to all those issues. | 1:01:10 | |
And then Parhat, which was the circuit's decision, | 1:01:13 | |
which said, yes there is no question, | 1:01:16 | |
but that the judge will have the power to release. | 1:01:20 | |
And so all of that told me what the right was. | 1:01:22 | |
The right was clearly defined, | 1:01:26 | |
clearly defined by the judiciary, by the judges, | 1:01:27 | |
by the Supreme Court, by the circuit. | 1:01:32 | |
So the next step is, what is the remedy? | 1:01:34 | |
And the government was not telling me what the remedy was, | 1:01:36 | |
except continued detention of people who were innocent. | 1:01:39 | |
And I mean that in the true term, | 1:01:44 | |
were innocent of any wrongdoing, | 1:01:46 | |
other than being in the wrong place at the wrong time. | 1:01:51 | |
So I understood that there | 1:01:55 | |
might've been political considerations. | 1:01:59 | |
No matters of national security were ever | 1:02:03 | |
brought to my attention, for example. | 1:02:06 | |
I mean, if there had been some | 1:02:08 | |
issue of national securities buried within | 1:02:09 | |
the scenario that they needed to discuss with me, | 1:02:14 | |
you know, either with no one in the courtroom and sealed, | 1:02:18 | |
I would have gladly listened to that, | 1:02:22 | |
but there was nothing. | 1:02:23 | |
There was only indefinite detention | 1:02:24 | |
of people who were innocent, | 1:02:26 | |
and clearly, already determined | 1:02:29 | |
and labeled as non-combatants, non terrorists. | 1:02:33 | |
It had been seven years these people had been locked up. | 1:02:39 | |
Seven years! | 1:02:42 | |
A right without a remedy, | 1:02:45 | |
well, I just didn't feel that proceeding along those lines | 1:02:46 | |
was consistent with the directive | 1:02:50 | |
that the judicial branch of government has | 1:02:54 | |
in terms of interpreting and applying the law. | 1:02:56 | |
Interviewer | So what did you think would happen | 1:03:00 |
after you issued the remedy of releasing them into the US? | 1:03:01 | |
- | I assumed at that point that... | 1:03:06 |
Well, I assumed there would be some resistance. | 1:03:09 | |
I wasn't sure if the resistance would take | 1:03:12 | |
the shape of an actual appeal. | 1:03:15 | |
When they asked for a stay and I rejected it, | 1:03:17 | |
I just saw the stay. | 1:03:19 | |
To me, the stay seemed like another attempt to delay, | 1:03:21 | |
and these people had been locked up | 1:03:25 | |
for over seven years at this point, | 1:03:27 | |
and I had never seen one or met one, | 1:03:29 | |
but I gathered from what I read | 1:03:32 | |
that these people were anxious | 1:03:34 | |
to have justice done by a judicial system, | 1:03:35 | |
which has a reputation worldwide | 1:03:38 | |
for meeting out justice. | 1:03:41 | |
So, yeah, I decided that something had to happen. | 1:03:43 | |
Interviewer | So I'll ask you, I guess, | 1:03:48 |
in a different way. | 1:03:51 | |
Were you optimistic that something would happen? | 1:03:52 | |
Did you think | 1:03:54 | |
President Obama would say- | 1:03:55 | |
- | Yes. | |
Perhaps I didn't understand the question clearly. | 1:03:58 | |
Yes, I knew there would be some resistance, | 1:04:00 | |
but I figured that, at that point, | 1:04:03 | |
the Obama administration would, | 1:04:05 | |
especially in light of the president's statement | 1:04:08 | |
that he was gonna close down Guantanamo. | 1:04:10 | |
But this particular subset of circumstances | 1:04:12 | |
of these people being detained so long and being innocent, | 1:04:15 | |
I figured that the attorney general | 1:04:18 | |
and the president would urge the matter to move in a fashion | 1:04:21 | |
so that they find a place, bring 'em here, | 1:04:25 | |
and if that's the pressure that needed to be exerted | 1:04:27 | |
then that would be the pressure | 1:04:30 | |
that needed to be exerted. | 1:04:32 | |
And if the Department of Homeland security | 1:04:33 | |
or otherwise said, | 1:04:34 | |
well, we can't keep them here. | 1:04:35 | |
We need to move them to Argentina | 1:04:37 | |
or someplace other place that had accepted them, | 1:04:39 | |
I mean, it still wouldn't be a happy solution, necessarily, | 1:04:42 | |
for the Uyghur's, | 1:04:44 | |
but it would be a solution | 1:04:45 | |
that involved they're released from detention. | 1:04:48 | |
Interviewer | So were you surprised when President Obama | 1:04:51 |
and the administration didn't kind of | 1:04:53 | |
take your initiative and say, | 1:04:56 | |
let's use this to help close Guantanamo? | 1:04:57 | |
- | I was disappointed. | 1:05:00 |
Interviewer | And instead, they appeal your case | 1:05:04 |
to the Court of Appeals. | 1:05:05 | |
Can you tell us what happened there? | 1:05:07 | |
- | Well, first, it was a stay, | 1:05:10 |
which meant that everything had frozen in place. | 1:05:13 | |
My order to have them brought | 1:05:16 | |
by the following week to the courtroom | 1:05:18 | |
was now in suspended animation. | 1:05:20 | |
And then there was a very expedited | 1:05:22 | |
process by the government and the lawyers who resisted | 1:05:28 | |
having the stay put in place. | 1:05:33 | |
But an expedited procedure | 1:05:35 | |
whereby the matter was now fully litigated | 1:05:37 | |
in an appellate fashion before the DC Circuit, | 1:05:40 | |
and the DC Circuit adopted the government's view, | 1:05:44 | |
which essentially was, and I understand, | 1:05:48 | |
I understand the dynamics of this. | 1:05:51 | |
I don't fault the circuit. | 1:05:53 | |
But the dynamics of this was the following: | 1:05:55 | |
the government said, | 1:05:58 | |
only the executive branch has the authority to have, | 1:06:01 | |
to invite people into the country only. | 1:06:06 | |
Now, the caseload didn't fully support that, | 1:06:10 | |
but I understand the position they took. | 1:06:13 | |
And that the judicial branch | 1:06:15 | |
does not have the authority | 1:06:17 | |
to have people brought into the country. | 1:06:19 | |
I understand that as well. | 1:06:21 | |
And again, I think the precedent... | 1:06:24 | |
They had precedent for that premise, | 1:06:28 | |
but there was also precedent contradictory to that | 1:06:32 | |
in a few cases that I was able to find. | 1:06:37 | |
But that was the position. | 1:06:41 | |
And the panel felt that, | 1:06:43 | |
yes, it should be, | 1:06:45 | |
that should be the function of the executive branch. | 1:06:47 | |
But again, when the executive branch | 1:06:50 | |
does not act in a responsible fashion, | 1:06:52 | |
and it has recognized the right, and so have the courts, | 1:06:55 | |
then I think I would have been derelict to say, | 1:07:00 | |
well, no, there's nothing I can do. | 1:07:02 | |
Interviewer | So you talked in your decision | 1:07:05 |
opinion about liberty trumping separation of powers, | 1:07:08 | |
which kind of is what you're saying, | 1:07:12 | |
but can you just explain a little bit on that | 1:07:14 | |
what you were thinking? | 1:07:17 | |
- | Well, the law has a body, | 1:07:18 |
which is all the black letter | 1:07:22 | |
that spells out with specificity | 1:07:24 | |
what the statute directs, and what the crime is, | 1:07:28 | |
or what the procedures are, or what the rights are, | 1:07:32 | |
or in the Constitution, | 1:07:35 | |
describing specifically what this country stands for, | 1:07:36 | |
and how it's going to employ | 1:07:41 | |
the rights that it has invested in people. | 1:07:43 | |
But the law also has a spirit. | 1:07:46 | |
It's a human... | 1:07:48 | |
It's a living organism. | 1:07:50 | |
It has a body, and it's got a spirit. | 1:07:51 | |
A body without a spirit is a dead thing. | 1:07:54 | |
And no, the court should be | 1:07:58 | |
very careful in a ruling in ways | 1:08:02 | |
that are not consistent with the body of law. | 1:08:07 | |
But the courts have the responsibility | 1:08:12 | |
to recognize the spirit of the law, | 1:08:13 | |
and liberty is one of the most | 1:08:14 | |
fundamental rights that a person can possibly have | 1:08:16 | |
under our Constitution. | 1:08:21 | |
That's it, liberty. | 1:08:23 | |
Not the right to keep your money, | 1:08:25 | |
or not the right to own land. | 1:08:26 | |
Liberty. | 1:08:28 | |
"Give me liberty or give me death", | 1:08:29 | |
I think somebody famous once said. | 1:08:30 | |
So I felt that under these circumstances, | 1:08:33 | |
with the promise of indefinite detention, that Liberty, | 1:08:35 | |
that basic right, needed to be, | 1:08:39 | |
needed to have a remedy. | 1:08:43 | |
Interviewer | And how did you feel | 1:08:45 |
when the Court of Appeals overturned your decision? | 1:08:46 | |
- | Well, I felt that the Supreme Court... | 1:08:51 |
Well, of course I was disappointed, | 1:08:58 | |
and I felt that the Supreme Court would address it again, | 1:09:01 | |
because my goodness, after Boumediene, and Parhat, | 1:09:03 | |
some of those other cases, | 1:09:06 | |
I felt that it would have a difficult time explaining why, | 1:09:08 | |
especially given the language of Parhat, | 1:09:14 | |
why under these circumstances, | 1:09:17 | |
with the promise of indefinite detention, | 1:09:19 | |
why the judge could not order it? | 1:09:21 | |
But the Supreme court ducked it. | 1:09:23 | |
It really spoke not at all. | 1:09:26 | |
Instead of sending it back to me, | 1:09:28 | |
he sent it back to the circuit, | 1:09:29 | |
and the thing fizzled out, | 1:09:30 | |
and the Uyghur's continued to be detained. | 1:09:33 | |
Interviewer | Well, part of the way I believe it happened, | 1:09:36 |
is because the US government found a home | 1:09:38 | |
for one of the Uyghurs | 1:09:41 | |
- | Yes. | 1:09:43 |
- | when no one else | |
would take him? | 1:09:44 | |
- | Yes. | 1:09:45 |
I think it's Slovenia. | 1:09:46 | |
Some country. | 1:09:47 | |
- | Well, yes. | |
Switzerland took the disabled Uyghur, | 1:09:49 | |
and I think that was the problem? | 1:09:52 | |
- | Right. | 1:09:54 |
Interviewer | And that, therefore, | 1:09:55 |
the government could argue, | 1:09:57 | |
that now there were countries that would take | 1:09:58 | |
every one of the Uyghurs- | 1:09:59 | |
- | Well- | |
You know, some people believe, | 1:10:02 | |
some people who've analyzed the situation believe, | 1:10:04 | |
that the decision to bring them to this country | 1:10:07 | |
was an extra impetus to the government | 1:10:10 | |
to do what it had promised to do, | 1:10:15 | |
but had not been doing effectively before then. | 1:10:17 | |
And if that's true, fine. | 1:10:19 | |
But I understand. | 1:10:21 | |
I mean, I wasn't angry at the Court of Appeals. | 1:10:23 | |
I mean, I always say, | 1:10:26 | |
thank God for the Court of Appeals. | 1:10:27 | |
Especially in criminal cases where this liberty is at stake, | 1:10:29 | |
And if they see something that I didn't, | 1:10:34 | |
I never have a problem with the Court of Appeals say, | 1:10:37 | |
well, no, you should've done this, | 1:10:39 | |
and therefore, we're gonna do that. | 1:10:40 | |
Never. | 1:10:43 | |
You know, judges have to make... | 1:10:45 | |
Trial judges have to make decisions very quickly, | 1:10:48 | |
and so forth. | 1:10:49 | |
But no, I was not angry. | 1:10:50 | |
I understood the reasoning behind the decision. | 1:10:54 | |
I didn't agree with all of it, | 1:10:58 | |
but I felt that the Uyghurs had been, | 1:11:00 | |
I had given the case a fair shot, put it that way. | 1:11:05 | |
Interviewer | I mean, I think you are correct, | 1:11:08 |
that it was an impetus, | 1:11:09 | |
'cause it forced the government | 1:11:10 | |
to look for a country to find, at last, | 1:11:11 | |
a home for that last Uyghur | 1:11:14 | |
that no other country would take | 1:11:15 | |
in order to get the Supreme Court not to take the case. | 1:11:16 | |
I think that's what happened. | 1:11:19 | |
No regrets in your decision? | 1:11:20 | |
- | No, no regrets whatsoever. | 1:11:22 |
If it wasn't impetus, even less, regrets. | 1:11:25 | |
But no, no regrets. | 1:11:28 | |
The only thing that bothered me was, | 1:11:29 | |
that I think the initial decision | 1:11:31 | |
raised the hopes of these people. | 1:11:34 | |
They were, I'm sure, hoping to see their family, | 1:11:36 | |
see their friends, see their loved ones. | 1:11:39 | |
You know, maybe something could be arranged, | 1:11:41 | |
or they could resume some semblance of their life, | 1:11:42 | |
their culture, and so forth? | 1:11:46 | |
And then, of course, | 1:11:48 | |
that balloon was deflated almost immediately, I'm sure, | 1:11:49 | |
when they heard that the- | 1:11:51 | |
Interviewer | Court of Appeals. | 1:11:54 |
- | Well, that there was a stay, | 1:11:55 |
and then later, | 1:11:56 | |
that the Court of Appeals decided differently. | 1:11:56 | |
Interviewer | What reaction did you personally receive | 1:11:59 |
after you wrote that decision, made it public? | 1:12:01 | |
What reaction did you | 1:12:04 | |
personally see, if any? | 1:12:05 | |
- | Oh. | |
Interviewer | Did you get letters, | 1:12:07 |
or did people comment to you at all? | 1:12:08 | |
- | No. | 1:12:13 |
- | I mean- | |
- | Really? | 1:12:14 |
- | No. | |
None whatsoever. | 1:12:14 | |
You know- | 1:12:16 | |
- | You didn't get- | |
Interviewer | I'm sorry. | 1:12:20 |
(interposing voices) | 1:12:21 | |
- | I don't remember getting any letters. | 1:12:22 |
I mean, I think I would've remembered. | 1:12:24 | |
Of course, my law clerks frequently would | 1:12:27 | |
filter what I saw, | 1:12:29 | |
- | Oh. | |
- | and if they, if something came in | 1:12:31 |
that they felt was outrageous, | 1:12:32 | |
you know, they may mention it, | 1:12:34 | |
but they wouldn't show it to me. | 1:12:35 | |
But no, I did not, interestingly enough. | 1:12:37 | |
And I never thought of this until just now. | 1:12:39 | |
I did not get any adverse public reaction. | 1:12:41 | |
The people that did mention something | 1:12:46 | |
mentioned it favorably. | 1:12:49 | |
Thought that I had made the right decision. | 1:12:51 | |
I didn't discuss it with any of the judges. | 1:12:53 | |
Interviewer | Did they ever come up to you | 1:12:55 |
and say something like, good decision, | 1:12:56 | |
or we're glad you did it? | 1:12:58 | |
- | Well, that happened only once or twice. | 1:12:59 |
My son lives in Washington, DC. | 1:13:05 | |
His wife and my grandson. | 1:13:09 | |
And he had a barbecue. | 1:13:11 | |
Well, the following... | 1:13:16 | |
Well, the decision was in October, | 1:13:18 | |
so it must have been in the spring of the following year. | 1:13:19 | |
And this lady came up to me at the event. | 1:13:23 | |
He's a writer for "The New York Times", | 1:13:26 | |
so he knows a lot of people with different walks of life. | 1:13:28 | |
And this lady came up to me, and she said, "Thank you". | 1:13:31 | |
And I said, "For what?" | 1:13:34 | |
And she said, "I'm a Uyghur, | 1:13:36 | |
and I followed the events, I followed the decision, | 1:13:37 | |
and I wanna thank you on behalf of the Uyghur community". | 1:13:42 | |
That's the only reaction I recall. | 1:13:46 | |
Interviewer | So otherwise, people didn't come up to you | 1:13:50 |
in the street or nothing? | 1:13:52 | |
It was just... | 1:13:53 | |
It was all- | 1:13:54 | |
- | Now, people largely stay away from judges, | 1:13:56 |
state or federal judges in particular. | 1:13:58 | |
Even my friends won't comment, | 1:14:01 | |
unless they're a very close friend, | 1:14:03 | |
but even my friends won't comment on cases | 1:14:05 | |
one way or the other. | 1:14:08 | |
Interviewer | And after that case, | 1:14:09 |
did you get any more habeas cases, | 1:14:10 | |
or was that- | 1:14:12 | |
- | Yes, I did. | |
I had habeas cases. | 1:14:16 | |
I don't know if I got them after the case, | 1:14:17 | |
or I had them in my calendar. | 1:14:19 | |
(interposing voices) | ||
But yes, I had several habeas decisions to make | 1:14:21 | |
until I retired in 2012. | 1:14:26 | |
Interviewer | And did you ever ask Chief Judge Hogan | 1:14:28 |
why he assigned the Uyghur cases to you? | 1:14:32 | |
- | No, I did not. | 1:14:34 |
Interviewer | Do have a guess why? | 1:14:36 |
- | No, I never guessed why. | 1:14:40 |
I kind of joked with him once. | 1:14:43 | |
I said, "Well, thank you very much | 1:14:47 | |
for giving me all these wonderful cases". | 1:14:48 | |
But no, and he laughed. | 1:14:51 | |
But no, we never discussed it. | 1:14:52 | |
Interviewer | So looking back, would you have... | 1:14:55 |
What thoughts do you have about this period post-9/11, | 1:14:58 | |
and your role in it, | 1:15:00 | |
and these particular cases too, | 1:15:03 | |
but just a more general sense on | 1:15:06 | |
the role of justice and you as a judge? | 1:15:10 | |
- | Well, that whole 9/11... | 1:15:13 |
Events after 9/11 brought up, | 1:15:16 | |
and surfaced something that we all know | 1:15:19 | |
and I think understand, | 1:15:22 | |
and that is that, when you have anger and fear, | 1:15:24 | |
they contaminate the rational process. | 1:15:29 | |
There was good reason to be angry, | 1:15:34 | |
and there was good reason to be fearful. | 1:15:36 | |
And as far as the general population is concerned, | 1:15:38 | |
they were outraged, and sad, | 1:15:41 | |
and justifiably wanting something to happen | 1:15:44 | |
in response to those horrific events. | 1:15:52 | |
But government has a responsibility not to get angry, | 1:15:56 | |
or not to get, not to act out of anger, | 1:16:02 | |
and certainly, not to act out of fear. | 1:16:07 | |
because it invariably is going to | 1:16:10 | |
distort the process that is in place | 1:16:14 | |
for avoiding anger and fear as a basis | 1:16:20 | |
for governmental action. | 1:16:22 | |
Of course, government is made of people, | 1:16:25 | |
and people get angry and fearful, | 1:16:26 | |
and the political branches. | 1:16:29 | |
In addition to that, | 1:16:32 | |
when people react, | 1:16:33 | |
and they communicate their anger | 1:16:34 | |
or fear to their representatives, | 1:16:36 | |
then to a certain extent, | 1:16:37 | |
their representatives are responsible to listen to that, | 1:16:39 | |
and hopefully try to temperate it. | 1:16:45 | |
I think that much of what we saw during that period, | 1:16:51 | |
starting with 9/11, and the invasion of Iraq, | 1:16:58 | |
and all of that, that there were... | 1:17:03 | |
Of course, everybody is a genius in hindsight. | 1:17:06 | |
But I think it was the motivation | 1:17:08 | |
to proceed in that fashion | 1:17:12 | |
was not supported by the most rational | 1:17:15 | |
and calm analysis of the situation. | 1:17:22 | |
And the judiciary had a tremendous burden | 1:17:27 | |
in trying not to get swept up in that, | 1:17:32 | |
because judiciary... | 1:17:36 | |
People don't know very much about judges. | 1:17:39 | |
I mean, they know something about the congressman, | 1:17:40 | |
(mumbles) a lot about the president, and so forth. | 1:17:42 | |
But the judicial branch, | 1:17:45 | |
you know, we're kind of in the background. | 1:17:46 | |
You know, they kind of watch "Judge Judy" on TV, | 1:17:48 | |
and they get a glimpse. | 1:17:50 | |
But I never learned anything about the judiciary | 1:17:52 | |
when I was in high school. | 1:17:54 | |
Well, very little. | 1:17:56 | |
Or grammar school. | 1:17:57 | |
So then when the judiciary acts in a certain way, | 1:17:58 | |
and the public says, | 1:18:04 | |
my goodness, what's wrong with that judge? | 1:18:05 | |
They don't have a full comprehension | 1:18:08 | |
of the guidelines, and the restrictions, | 1:18:12 | |
and the parameters, and the rules | 1:18:14 | |
that the judge has to operate within, | 1:18:15 | |
and the judges cannot afford | 1:18:17 | |
to get swept up with anger or fear, | 1:18:20 | |
even if it's fear of public reaction. | 1:18:24 | |
Interviewer | So you're saying, | 1:18:27 |
the real war was put on the back burner too | 1:18:28 | |
during this time? | 1:18:32 | |
- | I believe that the thinking | 1:18:35 |
that motivated creating the CSRT, | 1:18:37 | |
and the detainee tribunals, | 1:18:40 | |
and the military courts, | 1:18:46 | |
which were, as we learned, largely deficient | 1:18:48 | |
in providing basic right, to due process rights. | 1:18:54 | |
The fact that even one of, | 1:18:59 | |
or the district of, | 1:19:02 | |
US district court judges found | 1:19:04 | |
that there was no right to have, | 1:19:06 | |
no right to have the situation vented in a federal court. | 1:19:09 | |
Yeah, so there was a difference of opinion going around, | 1:19:14 | |
not just only in the general public and the legislature. | 1:19:17 | |
It was in the courts as well. | 1:19:20 | |
But the bottom line is, | 1:19:22 | |
that all of that not withstanding, | 1:19:25 | |
the judges still have to | 1:19:29 | |
contain themselves to the task at hand, | 1:19:33 | |
because the government works | 1:19:35 | |
if everybody performs its function. | 1:19:37 | |
If the legislative, the executive... | 1:19:39 | |
And the function of the judiciary | 1:19:41 | |
is not to make the other branches happy, | 1:19:43 | |
or not to make the public happy, | 1:19:45 | |
but to follow the law. | 1:19:47 | |
And that's what I thought I was doing. | 1:19:49 | |
But again, the decision was otherwise, | 1:19:50 | |
and so be it. | 1:19:54 | |
Interviewer | You think that the decision | 1:19:56 |
was politically influenced? | 1:19:58 | |
Since you say- | 1:20:02 | |
- | The decision- | 1:20:03 |
- | The Court of Appeals? | |
- | No, I don't think directly, no. | 1:20:09 |
I think there was ideology involved, | 1:20:12 | |
but I don't consider ideology necessarily to be political, | 1:20:15 | |
and two judges may have different ideologies, | 1:20:19 | |
and as a consequence of that, | 1:20:23 | |
view a particular situation in a particular way. | 1:20:25 | |
But we're all predisposed in one way or the other. | 1:20:28 | |
No, I don't think that the judges were looking to | 1:20:30 | |
how the Republicans, or how the Democrats, | 1:20:34 | |
or how the legislature were gonna react to things. | 1:20:36 | |
I think they did what they thought was right. | 1:20:39 | |
Interviewer | Should Guantanamo be closed? | 1:20:43 |
Have you thought about that at all? | 1:20:46 | |
- | Yes, Guantanamo should be closed. | 1:20:46 |
Interviewer | Why? | 1:20:48 |
- | As long as there is a process for... | 1:20:51 |
I don't see that Guantanamo has done any good. | 1:20:57 | |
I don't see that it's provided anything positive. | 1:21:00 | |
I understand that it was at one time, | 1:21:04 | |
and perhaps, justifiably, | 1:21:06 | |
viewed as kind of a neutral place to put these people, | 1:21:07 | |
who were for the very first time | 1:21:10 | |
in the history of this country | 1:21:12 | |
in a special class of individuals, | 1:21:14 | |
and we had to put 'em somewhere. | 1:21:16 | |
But I don't think that | 1:21:18 | |
the purpose of Guantanamo has survived. | 1:21:19 | |
I think it's (coughs)... | 1:21:22 | |
Excuse me. | 1:21:26 | |
- | Bless you. | |
- | Is produced... | 1:21:27 |
At this point, | 1:21:29 | |
it's producing more negative effects than positive. | 1:21:30 | |
Interviewer | Is there something I didn't ask you | 1:21:30 |
that you thought about before you came, | 1:21:35 | |
or something you'd like to share with the audience? | 1:21:37 | |
I think you explained the court system really well, | 1:21:42 | |
and the role of the judge, and justice, | 1:21:44 | |
and I think your role in the case was explained very well. | 1:21:47 | |
But sometimes, people have other thoughts | 1:21:50 | |
that they just wanted to share about something? | 1:21:52 | |
- | Can we stop for a second? | 1:21:55 |
- | Sure. | |
(Ricardo coughs) | 1:21:56 | |
Male | Okay, we're rolling. | 1:21:59 |
Interviewer | Okay, one question... | 1:22:00 |
One thing that I was thinking about as you were talking, | 1:22:01 | |
'cause you mentioned earlier about national security issues, | 1:22:04 | |
is there something that | 1:22:07 | |
was particularly impacting the way you | 1:22:09 | |
sometimes handled cases | 1:22:12 | |
when national security issues | 1:22:13 | |
came up that- | 1:22:14 | |
- | Yes. | |
- | You know, national security is a term | 1:22:16 |
that is used with great power by those who assert it, | 1:22:20 | |
and by its very nature, it resists exploration. | 1:22:25 | |
So there may have been times, | 1:22:33 | |
not often, but at times, | 1:22:35 | |
when my insistence would result in disclosures made to me | 1:22:37 | |
that were labeled as having | 1:22:45 | |
a significance as national security. | 1:22:48 | |
Perhaps because of the circumstances it was said in, | 1:22:50 | |
and the fact that a disclosure of that type | 1:22:53 | |
would immediately identify that person as an informant, | 1:22:55 | |
and so forth, and so forth. | 1:22:58 | |
And again, most of us, | 1:22:59 | |
I think most of us judges, | 1:23:03 | |
were working with rules that had certain requirements | 1:23:05 | |
in a case where there was an adversarial situation, | 1:23:10 | |
especially where the outcome might result in detention | 1:23:14 | |
or imprisonment right? | 1:23:17 | |
So when this aspect of national security | 1:23:20 | |
was layered over certain information, and they said, | 1:23:26 | |
well, Judge, you've insisted, but here it is. | 1:23:29 | |
The stuff that was blacked out, | 1:23:31 | |
this is what it says, | 1:23:33 | |
but you can't share that with the other side. | 1:23:34 | |
And maybe they told the other side's lawyer, | 1:23:37 | |
and the lawyer couldn't share it with his client? | 1:23:39 | |
But this was a sphere of operation | 1:23:42 | |
that was totally new and foreign to us, | 1:23:47 | |
and we had to do the best we could | 1:23:51 | |
under the circumstances | 1:23:53 | |
to make sure that | 1:23:56 | |
nondisclosure did not materially affect the potential | 1:23:59 | |
for fairness in the proceeding, | 1:24:02 | |
and that was hard to do. | 1:24:04 | |
Interviewer | Did Judge Hogan ever have a discussion | 1:24:06 |
with the judges about that issue? | 1:24:09 | |
- | Not in my recollection. | 1:24:11 |
Judges are very... | 1:24:15 | |
As you know, judges are very protective | 1:24:16 | |
of their sense of independence, | 1:24:19 | |
and rarely, will one judge tell another judge | 1:24:23 | |
what judge number one thinks judge number two should do. | 1:24:31 | |
And if anything even approaches that, | 1:24:35 | |
there's usually some distancing from that. | 1:24:37 | |
But Judge Hogan was very deferential | 1:24:40 | |
and very sensitive to not wanting to say | 1:24:43 | |
or do anything that would suggest how. | 1:24:47 | |
You know, there are differing ideologies on that court, | 1:24:50 | |
how something should be resolved, | 1:24:52 | |
and what you should do | 1:24:54 | |
when the evidence that is not disclosed | 1:24:55 | |
might undermine the detainee's position. | 1:24:59 | |
That was something that each one of us | 1:25:06 | |
had to figure out on our own. | 1:25:07 | |
Interviewer | And so, because I'm naive, | 1:25:10 |
and haven't sat on a court, | 1:25:12 | |
a judge wouldn't wanna go to at least a colleague, and say, | 1:25:14 | |
look, this national security issue is | 1:25:17 | |
affecting the way I'm making decisions. | 1:25:21 | |
You know, do you have any thoughts on that? | 1:25:23 | |
- | Oh, yes. | 1:25:24 |
A judge could definitely do that. | 1:25:25 | |
And judges do do that. | 1:25:26 | |
You know, the general topic, | 1:25:28 | |
or a procedure, judges will talk about all the time. | 1:25:33 | |
How to handle a general topic, | 1:25:37 | |
judges will talk to each other about that, | 1:25:39 | |
because, first of all, they wanna learn, | 1:25:40 | |
and second of all, | 1:25:43 | |
do you want some degree of consistency, if that's possible? | 1:25:43 | |
So, yeah. | 1:25:47 | |
No, judges would talk, | 1:25:48 | |
but the judge probably would not get into specifics, | 1:25:49 | |
too many specifics, | 1:25:52 | |
about what national security meant in this situation, | 1:25:53 | |
because the judge who is entertaining these, | 1:25:56 | |
you can't even tell the other judge | 1:25:59 | |
what the national security issue is. | 1:26:01 | |
I could never disclose to anyone | 1:26:04 | |
what was contained within this item of national security. | 1:26:06 | |
Interviewer | And I assume you weren't the only judge | 1:26:13 |
who was uncomfortable with having this burden, | 1:26:15 | |
where it could impact the detainee, | 1:26:17 | |
and yet, there's nothing you can do about it? | 1:26:20 | |
- | I never talked to other judges about it, | 1:26:22 |
but the sense I got was that, | 1:26:23 | |
yes, this whole business of non-disclosure, | 1:26:25 | |
which was, as I said, | 1:26:29 | |
a total 180 degree from what we were used to | 1:26:33 | |
in criminal cases, | 1:26:36 | |
where the outcome could be detention, | 1:26:37 | |
was an impediment that we were all responsible to overcome. | 1:26:40 | |
And I got a sense that many of us were struggling with it. | 1:26:48 | |
Interviewer | Funny, 'cause one Australian lawyer | 1:26:53 |
we spoke to said to us, | 1:26:55 | |
that in Australia, national security would never be | 1:26:56 | |
an excuse to hold off evidence. | 1:26:59 | |
That that's not the way they see the world, so. | 1:27:02 | |
I wonder how common it is? | 1:27:05 | |
So I guess that's how we started when we took a break. | 1:27:09 | |
But is there anything else that, I mean, | 1:27:13 | |
this time that maybe... | 1:27:15 | |
Do you wanna close- | 1:27:17 | |
- | Nothing I can think of, no. | |
Interviewer | Well, I'm really grateful, | 1:27:19 |
and we need 20 seconds of room tone | 1:27:21 | |
where Johnny just has us quiet, | 1:27:23 | |
and then we can close also. | 1:27:26 | |
- | Okay. | |
- | Okay, thank you. | 1:27:28 |
- | That's fine. | |
Sure. | 1:27:29 | |
Johnny | Begin room tone. | 1:27:31 |
Ricardo | Do we talk? | 1:27:34 |
Just quiet, right? | 1:27:35 | |
- | Yeah, we just listen. | 1:27:36 |
- | Okay. | |
- | Okay, that was really- | 1:27:52 |
- | Okay. |
Item Info
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